Written by Anita Abraham
The recent arrests of several persons under the Prevention of Money Laundering Act, 2002 (PMLA), show that the laws for the grant of bail for offences alleged to have been committed under Special Acts are much more stringent and lean towards “jail, not bail” than offences committed under general laws. This is despite the cardinal principle of criminal law that every accused is presumed innocent until proven guilty.
Bail is a right, jail the exception
Through its Order dated February 13, 2024, the Supreme Court sought a response from the Union of India on whether the enactment of a separate bail law was being contemplated or prepared based on the directions of the Court vide the judgment of Satender Kumar Antil vs CBI (2022), passed in July 2022. In this judgment, the Court categorised offences and laid down guidelines for the grant of bail in each category. Based on Article 21 of the Constitution, the Court stated that “bail is the rule and jail is the exception”. It directed the Union of India to consider enacting a separate bail law that will streamline the grant of bail. The directions of the Court in the judgment show that the right to liberty of an accused should not be taken lightly.
The right to liberty is the most sacrosanct and inalienable of rights. So courts in India have upheld and preserved the constitutional mandate that this right can only be taken away by a procedure that is “fair, just and reasonable” and established by law.
When the process is punitive
On arrest, an accused is entitled by statute to move the courts to seek bail. In principle, the purpose of incarceration of an accused during the pendency of a trial is not punitive but meant to ensure their appearance during trial. Deeming it essential to an “enlightened criminal justice system”, in several judgments, the Supreme Court has discouraged keeping an accused in custody as a punitive measure while the trial drags on. In a landmark judgment of Hussainara Khatoon & Ors. vs Home Secretary, State of Bihar, the Court explained that a cardinal principle of criminal law is that “…imprisonment may follow a judgment of guilt. But should not precede it.”
Even in cases involving economic offences of an enormous magnitude, the courts have granted bail in several cases where the investigation was completed and a chargesheet was filed. Even before filing a chargesheet, if custodial interrogation is not necessary, bail should not be withheld as punishment. But there must be a balance with bail being granted on stringent conditions. However, with the enactment of several special laws such as the Prevention of Money Laundering Act, 2002 (PMLA), the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and the Unlawful Activities (Prevention) Act, 1967 (UAPA), the discretion of the Court to grant bail has been curtailed. Where criminal trials take several years to finish, limiting the scope for an accused to avail of bail, without enabling and ensuring speedy investigation and trial, can lead to a miscarriage of justice.
Why justice must be swift
The threshold for the grant of bail for offences alleged to have been committed under PMLA is higher. For instance, in a Rana Kapoor vs Directorate of Enforcement case, the accused was only granted bail by the Mumbai Special Court after he had completed more than half his sentence, without trial. The state’s rationale in such situations is that the accused may dispose of/deal with the proceeds of the crime shortly after arrest. However, if an accused person gets acquitted after spending years or even months in jail, the valuable years of his life that have been lost cannot be replaced and he has no means to retrieve his resources.
Under Section 37 of the NDPS Act, bail can only be granted to an accused if there are reasonable grounds for believing that the accused is “not guilty” and “he is not likely to commit any offence while on bail”. In the case of Mohd Muslim @ Hussain vs State (NCT of Delhi), 2023, the Supreme Court raised an important question: “What is meant by ‘not guilty’ when all the evidence is not before the court?” Consequently, it stressed upon the importance of a “reasonably expeditious trial”. Taking into consideration the fact that the accused had spent more than seven years in jail, even though the trial had hardly reached the halfway mark, the Court, while granting bail stated,“…if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling.”
Therefore, the consideration for bail for offences committed under these special Acts must be the same as that for crimes under the Indian Penal Code, 1860, and other criminal statutes. The obligation of the state to prove the charges against an accused through an expedited and fair investigation and trial is paramount. The failure to build a good legal case cannot be replaced by keeping an accused in custody for years. Otherwise, the long shadow of a prisoner awaiting justice without being released on bail or having the benefit of a speedy trial will eclipse the constitutional mandate of life and liberty.
While drawing attention to the constitutional mandate provided under Article 21, the Supreme Court in Babu Singh & Ors vs The State of UP observed, “The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.”
Hence, laws concerning bail must be expanded to ensure that the balance between the rights of the accused, the rights of the victim and the common good, is achieved.
The writer is an advocate practising in the Karnataka and Delhi Courts
